Union Bank & Trust Co. v. Himmelbauer , 57 Mont. 438 ( 1920 )

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

After the former appeal in this ease was determined (56 Mont. 82, 181 Pac. 332), issues were made up between the parties by the answer of the defendant Mabel Himmelbauer to the amended complaint and plaintiff’s reply thereto. The statement of the material allegations of the complaint made in the opinion delivered on that appeal is sufficient for the purposes of this appeal and it need not be repeated here.

Defendant’s answer contains seven separate defenses, only one of which, with the plaintiff’s reply to it, it is necessary to notice. The answer is the following: “(1) That said note described in paragraph 2 of plaintiff’s said complaint was not at the time of the institution of the above-entitled action due either in whole or in part as to this answering defendant; (2) that this answering defendant was not a party to the chattel mortgage referred to in paragraphs 4 and 5 of plaintiff’s amended complaint and was not bound by the provisions of the clause quoted in paragraph 5 of said amended complaint under which plaintiff alleges it declared said note due and payable on the seventh day of March, 1918; (3) that plaintiff’s suit herein was and is as to this answering defendant prematurely brought, and the same should be abated.”

The reply joins issue upon all of these allegations, except that it admits: 1 ‘ That the answering defendant wias not a party who signed the chattel mortgage.”

Upon the filing of the reply the defendant Mabel Himmelbauer moved the court for judgment on the pleadings. The ground of this motion was that it appeared by the admission in the reply that this defendant had not signed the chattel mortgage and was not bound by the stipulation contained in it granting the plaintiff the option to accelerate the payment of the note, and hence the action was prematurely brought against her. This defendant also moved the court to discharge the attachment on the same ground. In aid of this motion, Mr. Mettler, one of her counsel, filed an affidavit to which was attached a copy, of the chattel mortgage, stating that he was familiar with the facts in the ease, that the copy of the mortgage was a true and correct copy of the mortgage referred to in .the pleadings, and that there was no other on file or in existence to which the above-named plaintiff and the defendant were or are parties. The court heard the motions together and denied both of them. This appeal is by defendant Mabel Himmelbauer from the order denying the motion to discharge the attachment.

One assignment is that the court erred in denying the motion [1] for judgment on the pleadings. There is no appeal from such an order. (Rev. Codes, see. 6567.) The error of the court in this regard, if it committed error, cannot be reviewed on this appeal.

On the former appeal we held that, under the rule declared by section 5031 of the Revised Codes, the note and mortgage must be considered together, and that, so considering them, the defendant was bound by the stipulation in the mortgage permitting the plaintiff to accelerate the payment of the note upon [2] the happening of the conditions stated in the mortgage. Counsel for the defendant now insist that, since it appears by the admission in the reply that the defendant did not sign the mortgage, the district court was clearly in error in denying the motion. They cite the case Treas v. Haggin, 107 Iowa, 458, 78 N. W. 58, as conclusive of this contention. Their argument is that, as the defendant did not sign the mortgage it was not within the power of her codefendant husband to change her obligation to pay the note at any other date than that fixed by the terms of the note itself. We do not question the propriety of the rule as declared in the case cited. There one of the joint makers of two promissory notes had executed a mortgage to the payee to secure the payment of the notes which contained a stipulation that, if the makers should default in the payment of the principal sums or interest thereon, both of the notes should thereupon become due, and the payee, his heirs or assigns, might proceed to foreclosure. The court held, in effect, that the obligation of one of the joint makers who had not signed the mortgage nor in any way consented to the acceleration of the payment of the notes as provided in the mortgage was to be determined by the terms of the notes themselves; in other words, where two or more contracts related to the same subject matter and were executed at the same time, they could not be considered together as one contract unless they were executed between the same parties. This is the general rule, but it is subject to exceptions, as, for illustration, where two or more contracts are parts of the same transaction, are known to all the parties, and are •delivered at the same time to accomplish an agreed purpose. Under such circumstances the party not signing one of the contracts may not escape liability by asserting that he was not a party to all the writings. (Gammon v. Freeman, 31 Me. 243; Rogers v. Kneeland, 10 Wend. (N. Y.) 219; Logan v. Tibbott, 4 G. Greene (Iowa), 389; MacDonald v. Wolff, 40 Mo. App. 302; 9 Cyc. 581.)

The defendant denies that she signed the mortgage. This is [3] admitted by the plaintiff; but this is not an admission that •she was not present and did not join in the delivery of the mortgage in order to obtain the loan from the plaintiff with full knowledge of and consent to the entire transaction. If these were the circumstances surrounding the transaction, the defendant may not be permitted to say that she did not become bound by the stipulation in the mortgage. Her obligation is therefore to be determined by a consideration of all the surrounding circumstances, including the benefit, actual or implied, received by ' her, and not of the fact alone that she did not join in the execution of the mortgage. It may be that the allegations in the complaint are not sufficiently specific to admit proof of the circumstances, but with the inquiry in this regard we are not now concerned. As we said in disposing of the former appeal, our ''‘inquiry as to the sufficiency of the complaint may not go further than to ascertain whether the action is upon a contract, express or implied, for the direct payment of money; whether it states facts sufficient to constitute a cause of action against the defendants; and, if it does not, whether it can be amended so as to state a cause of action. ’ ’ If the allegations in the complaint are not sufficiently specific and broad enough to admit proof of the ■ circumstances surrounding the transaction, it is nevertheless amendable, and this brings it within the rule announced on the former appeal.

The order is affirmed.

Affirmed.

Associate Justices Holloway, Hurly, Matthews and Cooper concur.